Audiencia Nacional. N° resolution 21/2018, 29 June 2018, ROJ: SAN 2462/2018 ECLI: ES: AN:2018:2462

• 2018
• Spain

Topics

Legal bases

Courts

Laws

Relevant links

• http://www.poderjudicial.es/search/openDocument/b52f3980e4fb4c99/20180824

Facts

This case concerns a DAESH activist who spreads ideas that encourage acts promoted by this terrorist organization. In 2016 the activists declared fidelity to Abu Bark al Bagudadi who in 2014 proclaimed caliph of the Islamic State. The activist, who created a Facebook profile in 2016 and has 1800 followers and 117 publications, published a video elaborated destined to future jihad terrorists. It consists of a military manual that shows how to use the poison Ricin on a knife or as powder for use together with an explosive. His computer is directly connected to numerous URL via Google Drive, which also contains, among other things, a route containing images of capturing and subsequent execution of two Libyan men accused of espionage with the logotype DAESH. Also found was a video with the activist where he gave opinions about DAESH and the executions in its name. He also had a Twitter account that he used to spread Jihadist propaganda.

Legal grounds

Article 577 of the Penal Code (indoctrination in terrorism); Article 578 (exaltation and justification of terrorism) of the Penal Code.

Findings

In this case, the AN decided to disregard the crime of self-indoctrination (receiving training for terrorism) (Art. 577.2) included in the Additional Protocol to the European Convention on the Prevention on Terrorism, adopted in 2015 but not ratified by Spain. In its Explanatory Report it had been pointed out that the criminalization of “passive” behaviour (being recruited for terrorism) would create problems in some legal systems. Finding an appropriate definition of being recruited for terrorism which comprised a sufficiently active behaviour also posed certain problems. The same report also indicated that the drafters decided to criminalize behaviour closely to that of being recruited for terrorism, namely “participating in an association or group for the purpose of terrorism” (FJ3). The AN then turned to analyse Article 578 pointing out that the exaltation or justification of terrorism can be realized by whatever medium of public expression and diffusion, as a newspaper or a public act with numerous concurrencies, and today, given the evolution of technology: the Internet. However, as stated in the judgment of the Constitutional Court of 20 June 2016 (11212016), this crime constitutes a legitimate interference in freedom of expression of its authors insofar as it can be considered as a manifestation of discourse of hate to propitiate or advance, even if indirect, a situation of risk for persons or for third persons’ rights or for the system of liberties itself. Here the AN refers to the Explanatory Report to the Council of Europe Convention for the Prevention of Terrorism to clarify the balance that must be struck between the crime in focus and freedom of expression, to point out that the crime could cover “the dissemination of messages praising the perpetrator of an attack, the denigration of victims, calls for funding for terrorist organizations or other similar behaviour” which could constitute indirect provocation to terrorist violence. In the present case, the videos and messages are not limited to provide information about terrorism. Moreover, the AN refers to the pronouncement of the Supreme Court that it is thus not limited to the mere dissemination of messages and slogans, but amounts to use of iconographic and visual, even lyric language, aimed at approving and justifying the war maintained by the Islamic State and its expansion through terror and arms against every unfaithful in whatever place (FJ3). The AN then analyses if the acts in the present case should be subsumed under Art. 577.2 related to active indoctrination. The latter precept relates to the fact that terrorist organizations can benefit from individuals who, without belonging to them, and for whatever distant motive for sharing its postulates, are disposed to facilitate their aim of subverting the constitutional order or to gravely alter public peace. The precept is meant to dissuade whatever contribution specifically oriented to favour violent methods of a terrorist organization, in such a way that only the knowledge that the act realized can benefit those who have the objective to frighten or insult the citizen collective, is sufficient for the essence of this crime. The AN concludes that in the present case, the conduct of the accused is not indoctrination, whether active or passive (Article 577) but constitutes the crime of provocation and exaltation of terrorism according to Article 578 (FJ4). The accused was convicted for exaltation and justification of terrorism, with no existing generic circumstances that modify criminal responsibility, to 2 years in prison and a fine of 5 euros per day during 15 months and absolute inhabitation for a period of 6 years beyond the period of imprisonment. The activist is absolved of the crime of capturing, indoctrination and training to commit any terrorist acts.